NY BAR REVIEW TORTS AND TORT DAMAGES LAW COURSE

Question 1

what type of negligence jurisdiction is NY?

Answer 1

comparative negligence jurisdiction

Question 2

in an action to recover damages for personal injury, injury to property or wrongful death, culpable conduct attributable to claimant or decedent, including contributory negligence or assumption of risk, bars or does not bar recovery?

Answer 2

does not bar recovery

Question 3

culpable conduct attributable to claimant or decedent, including contributory negligence or assumption of risk - ____________ amount of damages otherwise recoverable in proportion which culpable conduct attributable to claimant or decedent bears to culpable conduct which caused damages.

Answer 3

diminishes

Question 4

what is an affirmative defense to be pleaded and proved by party asserting the defense?

Answer 4

culpable conduct attributable to claimant or decedent, including contributory negligence or assumption of risk claimed in diminution of damages

Question 5

when will the defendant be absolved of a duty owed to plaintiff?

Answer 5

when plaintiff voluntarily assumes known risk of injury

Question 6

a participant in a sports or recreational activity ______ to the risk which are inherent in and arise out of nature of sport generally and which flow from participation

Answer 6

voluntarily assumes and consents

Question 7

generally, violation of state statute that imposes specific duty constitutes what?

Answer 7

negligence per se

Question 8

in certain cases of negligence, violation may impose what?

Answer 8

absolute liability

Question 9

violation of a municipal ordinance or administrative rule or regulation constitutes some evidence of what?

Answer 9

negligence

Question 10

NY has abandoned the common law distinction among the three what?

Answer 10

invitee, licensee, trespasser

Question 11

duty owed by owner/occupier of land to whom?

Answer 11

person entering premises

Question 12

NY abandoned the common law distinction amongst invitee, licensee, trespasser, and instead, adopted a single standard of _________?

Answer 12

reasonable care under the circumstances

Question 13

a landowner MUST act as _______ in maintaining the premises in a _______ condition in view of ________, including __________

Answer 13

reasonable person.
reasonably safe.
all circumstances.
likelihood of injury to others, seriousness of the injury, burden of avoiding the risk.

Question 14

NY recreational statute in general obligations law:

Answer 14

no duty to keep premises safe for entry or use by others for hunting, fishing, boating, hiking, cross country, skiing, sledding, snowmobile operation or other recreational activities or give warning of any hazardous condition on the property.

Question 15

landowner CAN be found liable for what?

Answer 15

willful or malicious failure to guard or warn against dangerous condition or generally for injury suffered where permission to use property was granted for consideration.

Question 16

is there a defense of intra family immunity for non willful torts in NY?

Answer 16

NO. NY has abrogated it

Question 17

abrogate

Answer 17

repeal, do away with

Question 18

actions bw parents and children are or are not? actionable to same extent that such actions are actionable when brought by non family members

Answer 18

ARE actionable

Question 19

a parent’s negligent failure to supervise their child is or is not actionable by the child?

Answer 19

is NOT

Question 20

are third party tortfeasors entitled to contribution for parents for liability resulting in part from negligent supervision of child?

Answer 20

are NOT

Question 21

when parent breached duty owed to third parties by negligently permitting infant child to use dangerous instrument - parent liable or not?

Answer 21

LIABLE. parent’s failure to protect third party from foreseeable harm resulting from child’s improvident use of dangerous instrument, which harm includes third party’s tort liability

Question 22

third party cast in liability for injury to child may seek _________ from parent who has negligently entrusted the child with a dangerous instrument and whose negligence _________ to child’s injury.

Answer 22

contribution.

contributed.

Question 23

what is the name of the rule for negligent infliction of emotional distress suffered upon witnessing the injurty of a member of plaintiff’s immediate family?

Answer 23

ZONE OF DANGER rule

Question 24

a plaintiff is in the zone of danger if he is exposed to a ____________ due to __________’s conduct

Answer 24

unreasonable risk of injury.

defendant.

Question 25

plaintiffin negligent infliciton of emotional distress may recover damages for injuries suffered in consequence of ____ or _____ resulting from contemporaneous observation of ______ or _______ of a member of plaintiff’s immediate family, where defendant’s same conduct was a substantial factor in causing injury to plaintiff’s family member.

Answer 25

shock.
fright.
serious physical injury.
death.

Question 26

where a defendant has unreasonably endangered plaintiff’s physical safety, defendant breached duty owed directly to plaintiff, entitling plaintiff to recover ___________ including those suffered as consequence of __________?

Answer 26

all damages sustained.

witnessing suffering of an immediate family member also injured by defendant’s conduct.

Question 27

medical malpractice resulting in miscarriage or stillbirth is a violation of ________ to expectant mother, entitling her to damages for ________, even in absence __________ to mother.

Answer 27

duty of care.
emotional distress.
independent injury.

Question 28

ny’s scaffolding law

Answer 28

imposes a duty on contractors, owners, their agents to furnish or erect scaffolding, hoists, stays, ladders, and other devices so as to give proper protection to workers involved in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.

Question 29

violation of scaffolding law

Answer 29

imposes absolute liability and a plaintiff’s comparative fault WON’T reduce recovery.

Question 30

exception to scaffolding law violation for one or two family dwellings if

Answer 30

they contract for do not direct or control the work

Question 31

what type of liability is imposed by the scaffolding law on owners, contractors, and their agents?

Answer 31

strict liability, where a worker sustains an elevation related injury, due to falling object, falling worker, where injury is consequence of absence or improper use of such required safety devices.

Question 32

what requirements are contractors, owners, agents, to comply with?

Answer 32

all areas in which construction, excavation, demolition work is being performed be so constructed, shored, guarded, operated, so as to provide reasonable and adequate protection to persons employed or lawfully frequenting such places.

Question 33

who makes rules to carry out provisions of subdivision 6 in construction into effect?

Answer 33

Commissioner of Labor

Question 34

violation of subdivision 6 construction rules is evidence of what?

Answer 34

negligence

Question 35

dram shop act

Answer 35

creates a cause of action in favor of person injured in person,property, means of support or otherwise by an intoxicated person as against any person who by unlawfully selling liquor or assisting in procuring liquor for such intoxicated person, caused or contributed to such intoxication.

Question 36

what doesthe dram shop act require?

Answer 36

a commercial sale of alcohol.

Question 37

dram shop act - what kind of damages?

Answer 37

actual AND EXEMPLARY

Question 38

what is an unlawful sale re dram shop act?

Answer 38

sale to a minor.
sale to a visibly intoxicated person.
sale to a habitual drunkard - ALCOHOL BEVERAGE CONTROL ACT.

Question 39

whodoes dram shop liability extend to?

Answer 39

person, social host as well, who knowingly causes intoxication in person under 21 by furnishing , assisting in procuring, alcohol to minor.

Question 40

what is FURNISHING re dram shop act?

Answer 40

participation in deliberate plan to furnish alcohol to underage individuals

Question 41

OWNER of vehicle has what type of liability for death or injury to person or property resulting from negligent use or operation of vehicle by person using or operating it with the express or implied permission of owner?

Answer 41

vicarious liability - VEHICLE AND TRAFFIC LAW

Question 42

what is the presumption for vicarious liability of a vehicle owner?

Answer 42

a strong presumption of permissive use that can only be rebutted with substantial evidence sufficient to show driver of vehicle wasnt operating it with express or implied permission of owner.

Question 43

as a general rule, parents ARE or ARE NOT vicariously liable for torts of their minor children?

Answer 43

are NOT

Question 44

parent of infant over 10 yo IS or IS NOT liable for damages caused by infant who willfully , maliciously, or unlawfully damages, destroys, defaces public or private property?

Answer 44

IS

Question 45

parent’s liability is limited to how much $ for infant over 10 yo caused by infant who willfully , maliciously, or unlawfully damages, destroys, defaces public or private property?

Answer 45

$5000

Question 46

who may bring an action to recover damages due to injury resulting in decedent’s death as against a person who would have been liable to decedent if death had not ensued?

Answer 46

personal representative of decedent’s estate

Question 47

what are the damages recoverable in a wrongful death action?

Answer 47

pecuniary losses suffered by those for whose benefit the action is brought

Question 48

the damages in a wrongful death action suit are exclusively for whose benefit?

Answer 48

decedent’s distributees.

to be distributed in accordance with pecuniary injuries suffered by distributees.

Question 49

are proceeds of a wrongful death action assets of the estate to be distributed in accordance with decedent’s will or laws of intestacy?

Answer 49

NO

Question 50

plaintiff in a wrongful death case IS or IS NOT to be held to high degree of proof required where injured party can themselves testify and describe the occurence upon which action is based?

Answer 50

IS NOT

Question 51

what is the noseworthy doctrine?

Answer 51

requires jury charge to explain the lesser burden of proof in wrongful death action.
has also been applied in cases of amnesia.

Question 52

in a commercial context, what type of duty exists when relationship bw parties is such that one may justifiably rely upon other for information?

Answer 52

duty to speak with care

Question 53

what is the duty to speak with care?

Answer 53

when relationship bw parties is such that one may justifiably rely upon other for information, in a commercial context

Question 54

what type of liability may be imposed in a commercial transaction where there is a special relationship bw parties, giving rise to exceptional duty regarding commercial speech and justifiable reliance on such speech?

Answer 54

negligent misrepresentation

Question 55

what is negligent misrepresentation?

Answer 55

liability may be imposed in a commercial transaction where there is a special relationship bw parties, giving rise to exceptional duty regarding commercial speech and justifiable reliance on such speech

Question 56

whether the relationship bw parties is such that reliance is justified, with consideration given to whether person making representation held unique or special expertise, whether a special relationship of trust or confidence existed bw parties, whether speaker was aware of use to which information would be put and supplied it for that purpose- is a question of law or fact?

Answer 56

fact

Question 57

an accountant MAY be liable to what type of party?

Answer 57

with whom he or she doesnt have privity of contract where party relies to his detriment on inaccurate financial reports prepared by him

Question 58

in what cases may an accountant be liable to a party with whom he or she doesnt have privity of contract where party relies to his detriment on inaccurate financial reports prepared by him?

Answer 58

accountant was aware that financial reports would be used for particular purpose.
in furtherance of that purpose, known party was intended to rely.
there was some conduct on part of accountant linking him or her to that party, which evinces accountant’s understanding of that party’s reliance.

Question 59

persons subject to liability for same personal injury, property damage, wrongful death may claim ______ among them - regardless of whether an action has been brought or judgment rendered against person from whom it is sought?

Answer 59

CONTRIBUTION

Question 60

what is the amount of contribution that may be recovered?

Answer 60

excess paid by person seeking contribution over and above his equitable share of judgment recovered by injured party.

Question 61

how are equitable shares determined?

Answer 61

in accordance with relative culpability of each person liable for contribution

Question 62

where 2 defendants are jointly and severally liable, and the percentage of responsibility for damages is determined, what may plaintiff recover?

Answer 62

full amount of damages from either defendants.
if one defendant pays entire judgment, that defendant may recover the percentage of damages responsibility the from the other defendant by way of contribution.

Question 63

ow is a cause of action for contribution asserted?

Answer 63

separate action.
cross claim.
counterclaim.
third party claim in pending action.

Question 64

what is the statute of limitations for a contribution claim?

Answer 64

6 years.

running from the payment.

Question 65

employer is NOT liable for contribution or common law indemnification to third party when?

Answer 65

when injuries sustained by employee whos actingwithin scope of their employment

Question 66

employer MUST provide compensation to employee in what case?

Answer 66

disability or death of employee from injuries arising out of and in the course of employment regardless of whether employer or employee was negligent, and employee’s sole remedy against employer lies in recovery under worker’s comp law.

Question 67

employer IS liable for contribution or common law indemnification to third party when?

Answer 67

when injuries sustained by employee whos acting within scope of their employment are GRAVE

Question 68

what is a grave injury?

Answer 68

death.
permanent and total loss of use or amputation of arm, leg, hand, foot.
loss of multiple fingers or toes, loss of index finger.
paraplegia or quadriplegia.
total and permanent blindness or deafness.
loss of nose or ear.
permanent and severe facial disfigurement.
acquired injury to brain caused by external physical force resulting in permanent total disability.

Question 69

what is the effect of a release given to 1 of 2 or more persons liable or claimed to be liable in tort for same injury or wrongful death?

Answer 69

this reduces the claim of the injured party against the other tortfeasors by greatest amount stipulated in the release, amount of consideration paid for release, or amount of released tortfeasor’s equitable share of damages.

Question 70

what happens when a tortfeasor obtains release from injured party?

Answer 70

he is relieved of liability for contribution to any other tortfeasor and waives his right to claim contribution from any other tortfeasor.

Question 71

where there is non economic loss in certain personal injury cases, there is what type of liability?

Answer 71

joint and several

Question 72

what is non economic loss?

Answer 72

pain and suffering, mental anguish, loss of consortium

Question 73

a defendant whose proportionate share of fault is fifty percent or less 50% - , is liable for what?

Answer 73

plaintiff’s non economic loss only to extent of such proportionate share

Question 74

what type of non economic loss liability has one who is less than 50% liable?

Answer 74

severally

Question 75

if a defendant is insolvent, will plaintiff be able to recover a pain and suffering award?

Answer 75

NO

Question 76

are we to consider the culpable conduct of any person not a party to the action in determining apportionment of fault?

Answer 76

NO, if plaintiff is unable with due diligence to obtain jurisdiction over such person

Question 77

the CPLR precludes what if a plaintiff worker hasnt sustained grave injury?

Answer 77

consideration of employer’s culpable conduct in determining any equitable shares

Question 78

limitation of CPLR art 16 on joint and several liability do NOT apply to whom?

Answer 78

a tortfeasor held liable for having violated non delegable duty, such as is imposed on owners and contractors by the labor law or to liability arising under doctrine of respondeat superior.
actions requiring proof of intent, torts like fraud, assault.
to persons held liable by reason of ownership, use or operation of motor vehicle.
in product liability action to the apportioned share of manufacturer where manufacturer is NOT a party to action and plaintiff establishes inability to obtain jurisdiction over manufacturer who would’ve been liable under doctrine of strict liability.
if plaintiff worker sustained grave injury and sues defendant claimed liable for injury, to extent of equitable share of plaintiff’s employer.
to persons held liable for causing injury by having unlawfully released a hazardous substance into the environment.

Question 79

slander

Answer 79

generally not actionable unless plaintiff suffers special damages

Question 80

slander per se - law presumes damages will result from statements in these categories and damages need NOT be alleged or proven

Answer 80

statements charging plaintiff with serious crime.
statements that tend to injure plaintiff in their trade, business, profession.
statements that plaintiff has loathsome disease.
statements imputing unchastity to a woman.

Question 81

libel action

Answer 81

damages are presumed where statement charges a person with committing a serious crime or tends to cause injury to a person’s profession or business.

Question 82

common law right to privacy - NY?

Answer 82

NY does NOT recognize such

Question 83

use of advertising or trade purposes of name or picture of any living person without such person’s written consent is what?

Answer 83

misdemeanor

Question 84

a person whose name, picture or voice is used for purposes of advertising or trade without their WRITTEN consent, may seek what?

Answer 84

injunction + sue for damages

Question 85

if person’s picture is NOT used for trade or advertising purposes, but rather, in connection with reporting of a newsworthy event of a matter of public interest, statutory right of privacy is or is NOT transgressed?

Answer 85

NOT

Question 86

what is a prima facie tort?

Answer 86

infliction of intentional harm, resulting in damage, without excuse or justification, by act or series of acts, which would otherwise be lawful

Question 87

what is an essential element of cause of action for prima facie tort?

Answer 87

special damages

Question 88

what is the NO FAULT LAW?

Answer 88

the comprehensive motor vehicle insurance reparations act

Question 89

what does the comprehensive motor vehicle insurance reparations act provide?

Answer 89

a means of compensating victims of automobile accidents for their economic losses promptly and without regard to fault or negligence

Question 90

every owner’s policy of liability insurance issued on a motor vehicle is to provide for what?

Answer 90

the payment of first party benefits to a person injured in the use or operation of the vehicle, other than occupants of another motor vehicle or a motorcycle.

Question 91

in a two car accident, where does the injured party look to?

Answer 91

the insurance on the vehicle they were driving or in which they were riding as a passenger to recover such items of damage as medical expenses and lost wages,regardless of whether or not the accident was caused by the negligence of the driver or the negligence of the driver of another vehicle .

Question 92

in order to find that the injury was caused in the use or operation of a vehicle, the vehicle must be what?

Answer 92

the proximate cause of the injury

Question 93

basic economic loss

Answer 93

insurance law

Question 94

basic economic loss, how much?

Answer 94

up to 50k per person of:
all necessary medical and related expenses w/o liitation as to time, provided need for such services is ascertainable w/in 1 year of date of accident.
loss of earnings, up to 2k per month for up to 3 yrs from date of accident.
all other reasonable and necessary expenses up to $25/day for no more than 1 yr from date of accident

Question 95

what are first party benefits?

Answer 95

payments to reimburse an injured person for basic economic loss, less 20 percent of lost earnings and amounts paid under state or federal law in disability or workers’ comp benefits.
insurance law.

Question 96

serious injury determination - which law?

Answer 96

insurance law

Question 97

what is a serious injury?

Answer 97

a personal injury resulting in death, dismemberment, significant disfigurement, fracture, loss of fetus, permanent loss of use of body organ, member, function, or system, permanent consequential limitation of use of a body organ or member, significant limitation of use of a body function or system, medically determined injury or impairment of a non permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the accident.

Question 98

entitlement to and exclusion from coverage for first party benefits - which law?

Answer 98

insurance law

Question 99

every owner’s policy of liability insurance issued on a motor vehicle must provide for payment of what?

Answer 99

first party benefits to person injured in use or operation of vehicle, other than occupants of another motor vehicle or motorcycle.

Question 100

insurer may exclude from coverage a person who does what?

Answer 100

intentionally causes his own injury.
is injured as result of operating a vehicle while intoxicated or while his ability to operate the vehicle is impaired by the use of an illegal drug.
is injured while in course of felony, while seeking to avoid lawful arrest, while operating a vehicle in a speed contest or while operating or occupying vehicle known to be stolen.

Question 101

any dispute involving the recovery of first party benefits can be resolved how?

Answer 101

arbitration.

lawsuit.

Question 102

policy of insurance issued on motorcycle must provide for what?

Answer 102

payment of first party benefits to pedestrian injured by use or operation of motorcycle.

Question 103

no fault coverage is optional for whom?

Answer 103

owner and operator of motorcycle

Question 104

availability of action for non economic loss, which law?

Answer 104

insurance law

Question 105

in any action by a covered person against another covered person for personal injuries arising out of negligence in use or operation of motor vehicle, there is NO right of what?

Answer 105

recovery for non economic loss - pain and suffering

Question 106

what is the exception to no right of recovery for non economic loss - pain and suffering?

Answer 106

serious injury.

basic economic loss.

Question 107

who is a covered person?

Answer 107

a pedestrian.
an owner injured through the use or operation of a motor vehicle.
an operator injured through the use or operation of a motor vehicle.
an occupant injured through the use or operation of a motor vehicle.

Question 108

in an action by a covered person against a non covered person, such as a manufacturer of a defective seat belt, is basic economic loss recoverable?

Answer 108

YES

Question 109

the insured who paid first party benefits to reimburse the covered person for basic economic loss has what?

Answer 109

a lien against any judgement to the extent of benefits paid.
insurance law.

Question 110

although basic economic loss is not recoverable in an action by a covered person against another covered person, to the extent economic losses exceed basic economic loss, are they recoverable?

Answer 110

YES

Question 111

municipal tort liability. proprietary v. govtl functions.
public entities are immune from what negligence claims arising out of performance of their govtl functions, uncluding police protection, unless what ?

Answer 111

injured person establishes a special relationship with the entity creating a specific duty to protect that individual

Question 112

when the state or other public entity acts in a proprietary capacity as a landowner, it is subject to the same principles of tort law as whom?

Answer 112

a private landowner

Question 113

special relationship, special duty.

a municipality’s duty to provide police protection is a duty owed to whom?

Answer 113

public at large, not a particular individual or class of individuals.

Question 114

municipality’s provision of police protection is generally regarded as?

Answer 114

resource allocating function, best left to discretion of policy makers.

Question 115

a municipality may NOT be held liable for injuries resulting from failure to provide what?

Answer 115

police protection

Question 116

exception to the general rule when special relationship exists bw whom?

Answer 116

municipality and claimant.

Question 117

elements of the special relationship bw municipality and claimant are:

Answer 117

assumption by municipality through promises or actions, of affirmative duty to ac on behalf of party who was injured.
knowledge on part of municipality’s agents that inaction could lead to harm.
some form of direct contact bw municipality’s agents and injured party.
that party’s justifiable reliance on municipality’s affirmative undertaking.

Question 118

notice of claim requirement- which law?

Answer 118

general municipal law

Question 119

an action may not be maintained against a municipality, fire district, school district to recover damages alleged to have been sustained by reason of negligence or wrongful act of defendant unless what?

Answer 119

notice of claim is served w/in 90 days after claim arises or in case of wrongful death, 90 days from appointment of rep of a decedent’s estate.
general municipal law. civil practice and procedure.